Wright v. National Archives and Records Service

Decision Date24 January 1975
Docket NumberCiv. No. 73-362-Y.
Citation388 F. Supp. 1205
PartiesJames B. WRIGHT, on behalf of himself and all others similarly situated v. NATIONAL ARCHIVES AND RECORDS SERVICE et al.
CourtU.S. District Court — District of Maryland

Donald S. Burris, Chevy Chase, Md., David A. Jones, William S. Moore, Washington, D. C., for plaintiff.

Thomas L. Crowe, Asst. U. S. Atty., Baltimore, Md., for defendants.

JOSEPH H. YOUNG, District Judge:

The plaintiff, a black federal employee, seeks damages and equitable relief against the General Services Administration (GSA), two of its subdivisions, the Acting Administrator of GSA and six other GSA employees alleging that he is the victim of racial discrimination in his employment relationship with the defendants. The plaintiff filed a complaint with GSA pursuant to Title VII of the Civil Rights Act of 1964 as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (Supp. II 1972). After nearly a year of administrative investigation and hearings, the plaintiff received an adverse ruling, and he now seeks a de novo trial of his complaint. To that end, he argues that his cause of action springs from three different sources: 42 U.S.C. § 2000e-16, 42 U.S.C. § 1981, and the Due Process Clause of the Fifth Amendment. He maintains that jurisdiction over the Title VII claim exists by virtue of 42 U.S.C. § 2000e-5(f)(3) and over the section 1981 and Fifth Amendment actions through 28 U.S.C. §§ 1331 and 1343 (there being more than $10,000 allegedly at issue).

The defendants have answered and move for summary judgment, urging first that this Court lacks subject matter jurisdiction over the section 1981 and Fifth Amendment claims because of the federal government's sovereign immunity. Their second argument is that the facts alleged in the complaint occurring prior to the 1972 amendments to Title VII cannot be considered by this Court and therefore that the complaint states no claim for which relief can be granted insofar as the Title VII action is concerned. Thirdly, the defendants maintain that even if Title VII will support the plaintiff's claim, only review of the administrative record is permissible and that such review requires affirmation of the administrative findings.

The plaintiff's case is pled with much skill and no little ingenuity. It is designed to proceed on two separate but parallel levels. On the one hand, there is the Title VII cause of action created by the 1972 amendments. The plaintiff has exhausted his administrative remedies and made a timely filing as required by section 2000e-16. The plaintiff maintains that even those alleged discriminatory acts which occurred before the effective date of the 1972 amendments may be considered, thereby assuring himself of an actionable claim, and that the Act, as amended, gives him a right to a de novo trial in this Court. The section 1981 and Fifth Amendment cause of action1 is the second level of the complaint, and it is included to provide a backstop for the Title VII cause. Assuming a ruling against his Title VII argument on any given point, the plaintiff argues that he has an independent cause of action by virtue of section 1981 and the Fifth Amendment which can plug any holes in his Title VII argument.

Plaintiff's Title VII theory and defendants' attack upon it can be resolved easily. The allegedly discriminatory incidents of which the plaintiff complains began in April of 1970 when he entered the Archives Specialist Training Program. It is plaintiff's contention that he continues to be a victim of racial discrimination up to the present time. The defendants would have this Court close its eyes to all alleged discriminatory incidents occurring before the March 24, 1972 effective date of the 1972 amendments. This claim is without merit. The Fourth Circuit has definitively held that pre-March 1972 incidents such as those upon which the plaintiff relies may be considered in actions brought under amended Title VII. See Koger v. Ball, 497 F.2d 702 (4th Cir. 1974). Having stated a good Title VII cause of action, the plaintiff's next hurdle is the defendants' contention that he is not entitled to a de novo trial. While there are commentary and cases to the contrary,2 the position of this Court is that no de novo trial is required under U.S.C. § 2000e-16 and that review is limited to the administrative record. See Handy v. Gaylor, 364 F.Supp. 676 (D.Md.1973). Handy finds considerable support in the reported decisions of other districts3 and requires no further amplification here.

The second string on the plaintiff's bow causes more difficulty. The plaintiff's argument is that section 1981 and the Fifth Amendment give him a cause of action independent of any cause of action he may have under Title VII. Plaintiff's attempt to provide a fall-back position should this Court find that no cause of action was stated under Title VII was unnecessary in the wake of Koger. Nonetheless, this approach cannot be written off immediately as well-intentioned redundancy. The plaintiff maintains that he is entitled to a de novo hearing. On the basis of Handy, this Court is compelled to rule against him, at least insofar as his Title VII theory of the case is concerned. The troublesome question left open, a question not explored in the briefs, is the consequence, if any, of plaintiff successfully stating a cause of action on his section 1981 theory to the de novo trial issue.

The chief hurdle confronting the plaintiff before he can succeed with the second approach to his case is the doctrine of federal sovereign immunity. Prior to the Supreme Court's decision in District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), and the 1972 amendments to Title VII, it was thought by the courts4 and Congress5 alike that sovereign immunity effectively kept federal employees out of federal court with regard to employment discrimination complaints, even though before Carter or section 2000e-16 the Fifth Circuit found a way around the sovereign immunity of the federal government through an action in the nature of mandamus. See Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972).6 Congress reacted with the compromise procedure set forth in section 2000e-16, opening the federal district courthouse door but limiting review to the administrative record. See Pointer v. Sampson, 62 F.R.D. 689, 692-694 (D. D.C.1974); Hackley v. Johnson, 360 F. Supp. 1247, 1250-1252 (D.D.C.1973). In Carter, however, the Supreme Court declared that section 1982, which like section 1981 is derived from section 1 of the Civil Rights Act of 1866,7 applied to racial discrimination "private as well as public, federal as well as state." 409 U. S. at 422, 93 S.Ct. at 605 (emphasis added). The relationship between sections 1981, 1982 and Title VII is well developed with regard to private discrimination,8 but the ramifications of that relationship in the wake of Carter have not been fully explored where federal employment is concerned. Recent decisions in the Fifth and Seventh Circuits suggest that section 1981 is not, in and of itself, a waiver of federal sovereign immunity but that the sovereign immunity barrier may indeed be breached by a section 1981 action if certain conditions are met.9

Even assuming that the plaintiff can side-step the sovereign immunity problem, he does not thereby succeed in creating an alternate route to de novo trial. Only one circuit has considered the relationship between Title VII and section 1981 insofar as employment discrimination complaints against the federal government are concerned. In an en banc decision, Penn v. Schlesinger, 497 F.2d 970 (5th Cir. 1974), rev'g, 490 F.2d 700 (1973), the Fifth Circuit concluded that exhaustion of Title VII administrative remedies is required even where the plaintiff successfully skirts sovereign immunity with a section 1981 action. An exhaustion requirement returning plaintiff to his Title VII remedies, if applied to this case, brings the present plaintiff full circle, for he has exhausted his administrative remedies. His remaining Title VII hope for relief lies in judicial review, which this Court has already held is limited to review of the administrative record rather than trial de novo. Adopting the Fifth Circuit construction of the relationship between Title VII and section 1981 in federal employment discrimination cases also preserves the legislative compromise originally perceived by this Court in construing the judicial review provisions of the 1972 amendments to Title VII. Congress could have provided for de novo review when it enacted those amendments. It did not, and this Court will not upset that Congressional judgment.10

One question remains to be answered before reaching the merits — what standard of review should be applied to the administrative record? The plaintiff makes much of what he views as a significant discrepancy between the standard of review prescribed by Judge Gesell in Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973) and that set forth by Chief Judge Northrop in Handy. Judge Gesell suggested that "if the District Court determines that an absence of discrimination is affirmatively established by clear weight of the evidence in the record, no new trial is required." 360 F.Supp. at 1252. Chief Judge Northrop, on the other hand, suggested that the scope of judicial review is fully exhausted when the administrative record discloses "substantiality in the support for the administrative findings." 364 F.Supp. at 679 quoting Halsey v. Nitze, 390 F.2d 142, 144 (4th Cir.), cert. denied, 392 U.S. 939, 88 S.Ct. 2316, 20 L.Ed.2d 1399 (1968). While the distinction plaintiff is attempting to draw may well be more apparent than real, it need not be explored by this Court, since, under either formula, the record provides sufficient support for the agency determination.

The plaintiff began his employment with the General Services Administration in 1957 at the GS-3...

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4 cases
  • Federal Deposit Ins. Corp. v. Citizens Bank & Trust Co. of Park Ridge, Ill., 77-1814
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 2, 1979
    ...E. g., United States v. American National Bank & Trust Co., 443 F.Supp. 167, 170 (N.D.Ill.1977) and Wright v. National Archives and Records Service, 388 F.Supp. 1205, 1209 n.9 (D.Md.1975). We have cited it for its discussion of 42 U.S.C. §§ 1981 and 1982. E. g., City of Milwaukee v. Saxbe, ......
  • Wright v. National Archives and Records Service, 77-1543
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • October 19, 1979
    ...denial of Wright's claims of discrimination, confining itself to review of the administrative record. Wright v. National Archives & Records Serv., 388 F.Supp. 1205 (D.Md.1975). On appeal, this Court vacated the district court judgment and remanded the case for trial De novo. See Chandler v.......
  • Jones v. Brennan, Civ. A. No. 19139.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • September 30, 1975
    ...not altogether clear, as was pointed out by Judge Young's footnote 9 in his well-written opinion in Wright v. National Archives and Records Service, 388 F.Supp. 1205, at 1209 (D.Md.1975): "When the Fifth Circuit, sitting en banc, reversed Penn I, it adopted as its opinion the dissenting opi......
  • Taylor v. Gillis
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 18, 1975
    ...required even where the plaintiff successfully skirts sovereign immunity with a section 1981 action." Wright v. National Archives and Records Service, 388 F.Supp. 1205, 1209 (D.Md.1975). The plaintiff has not convinced me that I should disagree with the three above-mentioned decisions. Ther......

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